Memorandum of
Disapproval on a Bill Concerning Whistleblower Protection

October 26, 1988

I
am withholding my approval of S. 508, the ``Whistleblower Protection Act of
1988.'' I regret that the Congress did not present me with constitutional and
effective legislation to expand the protections and procedural rights afforded
to Federal employees who report fraud, waste, and abuse they discover in
Federal programs.

Reporting
of mismanagement and violations of the law, often called whistleblowing,
contributes to efficient use of taxpayers' dollars and effective government.
Such reporting is to be encouraged, and those who make the reports must be
protected. At the same time, we must ensure that heads of departments and
agencies can manage their personnel effectively. Enactment of S. 508 would have
redesigned the whistleblower protection process so that employees who are not
genuine whistleblowers could manipulate the process to their advantage simply
to delay or avoid appropriate adverse personnel actions.

To
ensure that Federal employees who report mismanagement are protected from
reprisal, while ensuring that Federal personnel managers are not saddled with
routinely defending appropriate decisions they make, I have directed the
Attorney General, working with the Director of the Office of Management and
Budget and the Director of the Office of Personnel Management, to prepare
constitutional and effective whistleblower protection legislation for me to
submit at the beginning of the next session of the Congress.

A
major objection to S. 508 is its change of the factual showings required of
employees in making their cases in whistleblower proceedings. Section 1221(e)
of Title 5 of the United States Code, as contained in S. 508, would have
interfered substantially with personnel management in Federal departments and
agencies. Current law strikes a proper balance between the showings required of
employees and agencies in making their cases before the Merit Systems
Protection Board. Section 1221(e) would have removed the requirement that
employees demonstrate in Merit Systems Protection Board proceedings that whistleblowing by the employee was a substantial factor in
the agency's personnel action decision about which the employee complains.
Moreover, that Section would have imposed the heavier burden upon the
department or agency of proving by clear and convincing evidence -- which is a
much higher legal standard than proof by a preponderance of the evidence that
applies in most civil matters in American courts -- that the same decision
would have occurred in the absence of any whistleblowing.
The substantially reduced factual showing required of the employee and the
substantially increased burden on agencies essentially rigs the Board's process
against agency personnel managers in favor of employees. The interests of both
employees and managers should be fully protected.

The
provisions of S. 508 also raised serious constitutional concerns. Section 3 of
the bill amends chapter 12 in Title 5 of the United States Code substituting
new Sections 1201 through 1222. Section 1211 creates an Office of Special
Counsel and purports to insulate the Office from presidential supervision and
to limit the power of the President to remove his subordinates from office.
Section 1217 purports to prohibit review within the Executive branch of views
of the Office of Special Counsel proposed to be transmitted in response to
congressional committee requests.

Section
1212(d)(3)(A) of Title 5, as contained in the bill, purports to authorize the
Special Counsel to obtain judicial review of most decisions of the Merit
Systems Protection Board in proceedings to which the Special Counsel is a
party. Implementation of this provision would place two Executive branch
agencies before a Federal court to resolve a dispute between them. The
litigation of intra-Executive branch disputes conflicts with the constitutional
grant of the Executive power to the President, which includes the authority to
supervise and resolve disputes between his subordinates. In
addition, permitting the Executive branch to litigate against itself conflicts
with constitutional limitations on the exercise of the judicial power of the United
States to actual cases or
controversies between parties with concretely adverse interests.

These
provisions could not have been implemented to the extent that they are
inconsistent with the President's constitutional authority and duty to
faithfully execute the laws, supervise his subordinates in the Executive
branch, and recommend such measures to the Congress as he judges necessary and
expedient, and Article III requirements for the exercise of the judicial power.